20 May 2013

Colorado Sheriff's Second Amendment Lawsuit Dubious

The Suit

Fifty-four Colorado Sheriff's and various conservative and libertarian advocacy organizations and gun vendors and individuals, under the leadership of the Independence Institute, have joined a federal lawsuit seeking to have laws mandating universal background checks and limiting magazine size unconstitutional under the Second Amendment with this Complaint filed earlier this week.

Governor Hickenlooper is sued in his official capacity in an action seeking exclusively injunctive relief, in order to overcome the Eleventh Amendment prohibition on suing state governments for money damages in federal court. One complication politically comes from the fact that John Suthers, Colorado's attorney general charged with defending Governor Hickenlooper (who also signed the bill) in this action is a Republican who probably has great sympathy with the Plaintiffs' argument and a history of backing conservative advocacy litigation in the name of the State of Colorado himself.

The choice of a federal forum seems to be primarily rooted in the fact that the alternative (Denver District Court and ultimately the Colorado Supreme Court) are less likely to agree with them on the merits than the federal courts. The Plaintiffs might be lucky enough to pull conservative judges at the trial court and appellate levels, but are less likely to prevail on this score in the state courts. Also, a win in a federal appellate court would impact more states than a win in the Colorado Supreme Court.

The fifty-five page Complaint contains copious legal argument and analysis of caselaw, which is not normally appropriate for inclusion in such a document, because its P.R. function is as important as its legal sufficiency (and putting forth a legal argument even if it is a losing one protects the people filing it from sanctions for groundless and frivilous conduct).

The Arguments On The Merits

Universal Background Checks

Background check laws have previously been upheld against constitutional challenges and those rulings did not place particular importance on the fact that the law had loopholes for gun shows and the like. It receives only slight attention in the Complaint.

Simply put, it is hard to argue for a back door way to transfer guns to people who aren't allowed to own guns shielded only by innocence and willful refusal to obtain a background check, as a matter of constitutional right.

This argument is probably dismissed by the court early on and largely forgotten. Indeed, including this law in the lawsuit probably hurts the Second Amendment cause in the long run by establishing a precedent that can be used to limit the right in many other situations.

Sheriff Standing

It also seems likely that not all of the Plaintiffs, and in particular the Sheriffs, may lack standing to sue in federal court, at least once the background check issues is dispensed with in the case.

The argument that background checks are unconstitutional is central to the standing of the Sheriffs, since this is the source of most of the non-discretionary enforcement costs associated with the lawsuit and those enforcement costs seem to be the basis for their argument that they have standing to sue. The interstate fiscal federalism consideration that a new state law imposes financial burdens on county governments that enforce those laws is not normally a matter within the province of the federal courts. But, this seems to be the basis for the Sheriffs inclusion in the suit (their inclusion, of course, is to provide law enforcement political cover to a suit that facilities the conduct of mass murderers).

The argument that they have no duty to enforce a law that they believe to be unconstitutional, while true as far as it goes, is also problematic. Their remedy is generally not to seek a court ruling, and certainly not to seek a preliminary injunction against enforcement; it is to prioritize other cases. Only non-discretionary enforcement duties create a situation where court intervention is necessary.

I wouldn't be surprised if some of the "new law" that emerges from this lawsuit is a new doctrine restricting advocacy lawsuits like this one by Sheriffs and other local government officials.

The Ban On Large Magazines

The Plaintiffs magazine size argument has both a general Second Amendment argument that large magazine guns are included in the Second Amendment's protections and a couple of weaker arguments to support it.

* The Push For The "Common and Popular" Standard

The strongest argument against a limit on large magazines is that the Heller right is based on a right to armed self-defense and oneself and one's home, but the exact scope of that right in terms of what weapontry is appropriate for that purpose is not well developed. Some plausible standards for which arms are covered by the right could include large magazines.

The Plaintiffs are pushing a "common and popular" standard for including a firearm type within the scope of the Second Amendment's protections, as opposed to some sort of "necessary for self-defense of onself, one's home and one's family" standard, under which fifteen round magazines are something that a reasonable legislature in its wisdom balancing the interests at stake could find to be unnecessary.

A "common and popular" standard create a high bar for a law like Colorado's and would push every case to a battle of experts at trial. One would always have to argue over "how common is common" and "how popular is popular" as a matter of constitutional law. Even the facts themselves, if known precisely, would not provide clear cut guidanc on these questions.

The fact that no one has successfully challenged the highly regulated state of automatic weapons under federal law, however, doesn't bode well for this challenge which is based upon the same considerations but to a lesser degree in any version of a "necessity" for self-defense argument. The option of owning multiple loaded firearms undercuts an argument that the magazine size limit is unconstitutional because large magazines are "necessary" for the purposes that the Second Amendment protects.

In the face of a necessity standard, one would have to make the additional argument that the Second Amendment requires the law to permit less expensive means of bearing arms when more expensive options that accomplish the same ends are available. Arguing for an expense sensitive standard is not one that I would want to be force to make to a Court. But, the multiple firearm work around for the magazine limit also weakens that utility of the ban in preventing harm as part of a balancing test if some standard other than necessity determines the outer bounds of the Second Amendment's protections.

There are two other kinds of weaker arguments that are made with respect to the large magazine ban.

* The Americans With Disabilities Act Argument

One is based on the Americans With Disabilities Act claim that argues that people with disabilities need large magazines because they can't reload quickly, which seems dubious. A scenario that puts together a disabled person, acting in self-defense and exhausting a fourteen round magazine without thrwarting the criminals involved starts to seem like a very far fetched reason for finding a generally applicable ban on magazine size to facially invalid as applied to all citizens of Colorado. Of course, the easy alternative for this tiny class of persons: to own more than one loaded gun.

Quite frankly, this scenario just seems so far fetched, at least in a facial challenge to the constitutionality of the law itself. I can't even think of a movie in the orgy of violence that the cinema presents in action and horror movies that presents this kind of situation. It is hard to see it convincing the judges.

This seems like the sort of argument that might sound good in a libertarian gun nut bubble but seems like a bit creepy and paranoid to those who are not.

* The Vagueness Argument

Another is based on a vagueness challenges to certain language in the law.

This might have some legs as to the "designed to be readily convertable" language of the prohibition that might make it to an evidentiary hearing, although that is still a hard case on vagueness grounds and is more easily resolved with a court determined interpretation of that language that reads it narrowly.

The suit's broader vagueness attack, however, seems to be grasping at straws - "continous possession" for example, seems no more vague here than in other contexts where similar language has been held not to be vague.

Arguments Not Offered

I'll note that there are arguments other than those arising under the Second Amendment and ADA that might be plausible (e.g. the dormant commerce clause), but are not made here, presumably because the agenda of the Plaintiffs appears to be to make Second Amendment law, rather than simply to prevail on some other grounds.

Of course, since this was enacted by a state government, arguments based on the limited scope of Congressional authority that have been marshalled to fight gun control laws are not available.